Procurement rules could make provider contracts worthless and allow private companies to launch legal challenges against clinical commissioning groups (CCGs), the DH has warned.
DH director of NHS provider transition Bob Ricketts laid out plans last week for new procurement regulations which would apply to CCGs tendering under any qualified provider (AQP) rules.
Speaking at a DH, National Association of Primary Care and NHS Alliance event on the AQP initiative, he said it would be the role of NHS regulator Monitor to ensure CCGs abide by the regulations.
'They will be part of Monitor's regulatory toolkit,' he said.
'They have a key function to ensure that commissioners don't behave in an anticompetitive way that is against the interests of patients.'
In circumstances where CCGs do not abide by the regulations, Monitor can take action, Mr Ricketts explained.
'It will actually be able to take direct enforcement action against any commissioner who behaves in a way that is anticompetitive or breaches the regulations,' he said.
'So, for example, it could instruct you, if you have undertaken a flawed procurement process, to set that contract aside and start again.'
But he added that Monitor could not force a commissioner to put a service out to tender under AQP, even if its neighbour is doing so.
Mr Ricketts said CCGs could choose not to put services out to competition, but must ensure they have a 'rational and transparent' reason for doing so.
He said CCGs that decided against putting services out to tender under AQP could face legal challenges from private companies. 'You will inevitably be challenged by some providers on that, there may be a complaint, you will need to take that process of decision-making seriously and transparently,' he said.
The DH plans to consult on the procurement regulations in July 2012, and to publish them in April 2013, Mr Ricketts said.
- What do you think? Email GPletters@haymarket.com
> National Association of Primary Care chairman Dr Charles Alessi explains how the any qualified provider (AQP) policy can work for clinical commissioning groups.